Kozak-Biasotto v. Cherrington Service Corporation

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ROBERTA KOZAK-BIASOTTO, )
Plaintiff, )
)
v. ) C.A. No.: N21C-10-234 SPL
)
CHERRINGTON SERVICE )
CORPORATION, a Delaware )
Corporation, MEI INDUSTRIES, )
INC., a Delaware corporation, JAMES )
R. MADDOX, JR, and JAMES R. )
MADDOX, III, )
Defendants. )
MEMORANDUM OPINION
Submitted: March 19, 2024
Decided: June 4, 2024
Upon Defendants’, Maddox Enterprises, Inc. and James R. Maddox, III,
Motion for Summary Judgment.
DENIED.
Upon Defendants’, Cherrington Service Corporation and James R. Maddox, Jr.,
Motion for Summary Judgment.
DENIED IN PART, GRANTED IN PART.
Upon Defendant’s, Cherrington Service Corporation,
Motion for Summary Judgment on Counterclaim.
DENIED.
Nicholas G. Kondraschow, Esquire, RHONDUNDA, WILLIAMS &
KONDRASCHOW, Wilmington, Delaware, for Plaintiff Roberta Kozak-Biasotto.
Aaron E. Moore, Esquire and M. Claire McCudden, Esquire, MARSHALL
DENNEHEY, P.C., Wilmington, Delaware, for Defendants Cherrington Service
Corp. and James R. Maddox, Jr.
Theodore J. Segletes, III, Esquire, THE LAW OFFICES OF COBB & LOGULLO,
Wilmington, Delaware, for Defendants Maddox Enterprises, Inc., and James R.
Maddox, III.
LUGG, Judge
I. INTRODUCTION
This case involves a dispute between a landowner and her community
association to manage the flow of stormwater and their concomitant rights and
responsibilities with respect to their efforts to do so. And, because the community
association employed a contractor to perform work upon the landowner’s property,
they, too, are embroiled in the quarrel. As is often the case, when communication
fails, or is never initiated, and investigation is half-hearted or non-existent, litigation
ensues. Such is the case here.
Plaintiff, Roberta Kozak-Biasotto (“Kozak-Biasotto”) purchased the
residential property at 113 Haywood Road on June 6, 2003. There is no record
evidence that she performed any noteworthy alterations to the home or the contours
of the landscape surrounding her home. For over a decade she lived in the home on
that property without issue. That changed in 2016.
Cherrington Services Corporation (“CSC”) is the homeowner’s association
that manages Cherrington, a residential subdivision in Wilmington, Delaware.
James R. Maddox, Jr. (“Maddox Jr.”) has been a member of the CSC Board since
2017.1 Maddox Enterprises, Inc. d/b/a J&M Industries (“MEI”) is the construction
company retained by CSC to perform work on Kozak-Biasotto’s property.2 James
1
D.I. 79, Exh. B (“Maddox Jr. Aff”) at ¶ 1.
2
D.I. 79, Exh. D (“Gehring Aff.”) at ¶ 3.
1
R. Maddox, III (“Maddox III”) is the owner and operator of MEI and is Maddox,
Jr.’s son; while related, Maddox Jr. and Maddox III have no business association as
it pertains to this case.3 Collectively, CSC, Maddox, Jr., MEI, and Maddox III, are
the defendants named in Kozak-Biasotto’s lawsuit.
In 2016, MEI, at the direction of CSC, entered upon Kozak-Biasotto’s
property to perform work to address stormwater drainage.4 Maddox, Jr. believed
CSC possessed the legal right to enter upon Kozak-Biasotto’s property under an
existing easement.5 Following MEI’s work on the property, three noteworthy storms
dumped sufficient rain in north Wilmington to cause flooding and damage to Kozak-
Biasotto’s home and property.6 Kozak-Biasotto contends that the defendants’ entry
upon, and alteration to, her property caused flooding which damaged her property.7
The defendants disagree.
Discovery closed and the defendants have moved for summary judgment.
Following a thorough review of the pleadings and consideration of the parties’ oral
arguments, the Court concludes that material questions of fact exist as to claims
asserted by Kozak-Biasotto; thus, defendants’ motions for summary judgment must
3
Maddox Jr. Aff. at ¶ 2.
4
D.I. 85, Exh. G (“CSC Ans. to Amend. Compl”) at 16, ¶ 30.
5
D.I. 85, Exh. H (“CSC Ans. to Interrogatories”) at 9.
6
D.I. 85, Exh. C (“Kozak-Biasotto Dep.”) at 46, 58-61, 74, 140-141.
7
Kozak-Biasotto Dep. at 80; D.I. 13, Amend. Compl. at ¶¶ 75-79.
2
be DENIED. The Court does not find evidence of bad faith by any party and
summary judgement is GRANTED on Kozak-Biasotto’s claim of “Bad Faith –
Attorney’s Fees.”8
II. FACTS AND PROCEDURAL HISTORY
Kozak-Biasotto purchased 113 Haywood Road, located within the
Cherrington subdivision in Wilmington, Delaware, as her residence on June 6,
2003.9 In 1972, the original owner of the Cherrington property created a subdivision
plan that provided for a 20-foot wide drainage easement straddling the easterly
property line of 113 Haywood Road; ten feet of the easement encumbered Kozak-
Biasotto’s property, and ten feet encumbered the adjacent easterly parcel.10 A note
on the plan also provides for a six-foot-wide easement on each side and rear lot line
to be available for utility use, and a ten-foot-wide easement along the front lot line
to be available for storm drainage use.11
The 1974 Declaration of Restrictions for Cherrington (the “Declaration”)
provides, in pertinent part,
8
To the extent any party asserts a claim for attorney’s fees, it is hereby denied. The
parties have vigorously litigated on behalf of their respective clients. The Court does
not find bad faith; rather, some conduct may best be attributed to ignorance on behalf
of all parties.
9
D.I. 85, Exh A (“NCC Parcel Search”) at 1.
10
D.I. 85, Exh. I (“1972 Subdivision Plan”).
11
Id.
3
Easements and Right-of-Way. Easements and rights-of-way are hereby
expressly reserved over, under and along the side and rear boundary
lines of each lot, being twelve (12) feet in width centered on such
boundary lines of each lot so that the outmost six (6) feet of each lot
along its side yard and rear yard boundary lines shall be subject to such
reserved Easements and rights-of-way. The purpose thereof shall be
for the construction and maintenance of storm water drainage systems
as required by New Castle County or installed or authorized by
Declarants…
***
The owners and occupants of the lots shall at all times maintain and
occupy their lots so as not to interfere with the purposes for which said
easement and rights-of-way have been created and reserved.12
In 1987, the owner of the parcel at 113 Haywood Road constructed a single
family dwelling on the property.13 A driveway, drainage pipe, and berm were also
constructed on the property.14 The berm redirected the natural flow of stormwater.15
The drainage pipe also conveyed water across the property; it “is not within any
easement, does not run along any easement, and does not drain in any easement.”16
After Kozak-Biasotto purchased the property in 2003, she did not perform any
improvements to the existing landscape and its features.17 The drainage pipe running
12
D.I. 85, Exh. J (“1974 Decl. of Restrictions”) at 7-8.
13
NCC Parcel Search at 2.
14
Gehring Aff. at ¶¶ 8, 13; D.I. 85, Ex. O (“CSC July 28, 2021, Letter”).
15
Gehring Aff. at ¶ 8.
16
D.I. 85 (“Kozak-Biasotto’s Ans. Brf.”) at 8; CSC Ans. to Interrogatories ¶¶ 32-
34.
17
Kozak-Biasotto Dep. at 16, 17, 94.
4
underneath the driveway was already installed,18 and there was a narrow, deep ditch
between the berm and the pipe.19 Kozak-Biasotto never saw water running through
the pipe.20 There is no record evidence of any flooding to the property, or concerns
of CSC or others in the neighborhood about the landscape (condition and contours)
of 113 Haywood Road, during the first 13 years of Kozak-Biasotto’s ownership.
In 2016, as part of a neighborhood road improvement project, CSC contracted
with MEI to perform work on the cul-de-sac in front of Kozak-Biasotto’s property
and on portions of Kozak-Biasotto’s property believed to be part of an established
easement.21 Maddox Jr. and Robert Gehring (“Gehring”), as part of CSC’s Roads
Committee, oversaw the road resurfacing.22 The portion of Haywood Circle adjacent
to Kozak-Biasotto’s front property line was covered with 2 to 6 inches of dirt, pine
needles, and other natural debris23 which needed to be cleared.24
18
Kozak-Biasotto Dep. at 94.
19
Id. at 95
20
Id. at 81 - 82.
21
D.I. 85, Exh. E (“MEI Work Proposal”); D.I. 85, Exh. W (“MEI Ans. to
Interrogatories”) at 6 (“At all times [MEI and Maddox III] believed they were
working on property owned or controlled by [CSC]”).
22
Maddox Jr. Aff. at ¶ 1.
23
Id. at ¶ 5.
24
D.I. 79 (“CSC Op. Brf.”) at 3 (citing Gehring Aff.).
5
Under the June 15, 2016 contract between CSC and MEI, MEI agreed to
“correct the drainage in the cul-de-sac located at the end of Haywood Road.”25
Specifically, MEI would: (1) “pour a new concrete throat at the entrance to the
drainage pipe;” (2) add soil stabilization fabric to the bottom of the drainage culvert;
(3) reinstall rip-rap stones; (4) add an additional “12 tons of rip rap stones to replace
the void of the landscape ties and [] fill in the low areas;” and (5) “excavate and
remove the soil sediment sitting on the asphalt road.”26 No evidence has been
offered that Kozak-Biasotto was informed of the proposed work before or after the
execution of this contract.27
On July 25 and 26, 2016 MEI workers entered Kozak-Biasotto’s property to
perform work under the contract.28 It does not appear that Kozak-Biasotto was
present when work commenced;29 she returned home to find workers modifying the
berm in front of the pipe under her driveway, pouring a concrete throat to the pipe,
and putting rip-rap stone down from Haywood Circle leading to the pipe.30 MEI
25
MEI Work Proposal.
26
Id.
27
CSC Ans. to Interrogatories at 9, ¶¶ 10-11.
28
D.I. 85, Exh. F (“MEI Work Invoice”); MEI Ans. to Interrogatories at 7
(“Answering Defendant and his employee, Irving Mariaud worked on the job all day
on both days”).
29
Kozak-Biasotto Dep. at 114.
30
MEI Work Proposal.
6
trucks were present at that time, but Kozak-Biasotto does not believe she saw or
spoke with Maddox III.31 Kozak-Biasotto described the work as “a complete change
in the topography of the front of [her] home.”32 Kozak-Biasotto confronted some of
the individuals on her property, including Maddox Jr. who informed her that CSC
had the right to perform the work on her property within the existing easement.33
Maddox Jr. advised Kozak-Biasotto that “they were going to correct standing water
sitting in the cul-de-sac and that they had a right to because they had an easement
there” and that there was “a foot to 18 inches” of water sitting in the cul-de-sac where
cars passed through.34 Kozak-Biasotto accepted Maddox Jr.’s representations made
on behalf of CSC as to CSC’s rights under an existing easement;35 she believed he
was knowledgeable about the substance of his representations.36
In addition to the alterations to her property, Kozak-Biasotto stated that the
road resurfacing added “bumps” in the roadway that directed the flow of stormwater
toward the area where the berm was removed.37 She asserted that, before the 2016
31
Kozak-Biasotto Dep. at 41-42.
32
Id. at 111.
33
CSC Ans. to Interrogatories at ¶ 11; Kozak-Biasotto Dep. at 41.
34
Kozak-Biasotto Dep. at 44.
35
Id. at 117.
36
Id. at 44, 117.
37
Id. at 23, 96 - 97.
7
modifications to her property, the berm began at the westerly driveway and
continued to the easterly driveway;38 after the work was done, a 20-foot wide gap
was cut into the berm. The removal of this part of the berm altered the flow of
stormwater and impacted extant tree roots, causing flooding to 113 Haywood Road
and significant damage to an adjacent tree.39
The 2017 Storm
On July 23 and 24, 2017, a heavy storm dropped significant rainfall in
northern Delaware, including the Cherrington subdivision.40 Flooding from the
storm damaged the interior and exterior of Kozak-Biasotto’s home.41 About six
inches of water flooded into her first floor, damaging the floor, carpeting, and
furniture.42 Exterior stone steps to the residence sustained damage requiring nearly
$3,000 in repairs.43 Following the storm, Kozak-Biasotto “demanded that CSC do
something to prevent stormwater drainage from flooding her home.”44 She provided
CSC with a July 25, 2017 estimate from a company, Craft Not Dead, for work on
38
Id. at 38 - 39.
39
Id. at 39.
40
D.I. 79, Exh. F; Kozak-Biasotto Dep. at 46.
41
Amend. Compl. at ¶¶ 34-37.
42
Kozak-Biasotto Dep. at 46, 140 - 141.
43
Id. at 79.
44
Maddox Jr. Aff. at ¶ 6.
8
her property including repair of a “broken drain pipe that was damaged from the
force of the event.”45 That contractor informed Kozak-Biasotto that the steps
cracked from water pressure, rather than a faulty drainage pipe.46
In response to Kozak-Biasotto’s complaints, Maddox Jr. and Gehring
inspected the catch basin on Kozak-Biasotto’s property.47 They discovered that an
underground pipe receiving stormwater runoff from the roof of Kozak-Biasotto’s
house had exploded near the site of the flooding.48 Maddox Jr. told Kozak-Biasotto
that the cause of the flooding was the 100-year storm, and that it would never happen
again, but that they were going to install a gabion wall for her.49
On August 3, 2017, the president of CSC, Liz Oliver, wrote to Kozak-Biasotto
to inform her that CSC would not compensate her for the flooding damage because
a “thorough forensic investigation” by MEI revealed that the work done by MEI in
2016 did not cause the flooding.50 Oliver noted that “[t]here is no evidence that the
catch basin was blocked and overflowed” and that “[t]he erosion of the unreinforced
dirt embankment situated to the left of the steps, looking down from the driveway,
45
Id. at ¶ 6; D.I. 79, Exh. H (“Craft Not Dead Proposal”).
46
Kozak-Biasotto Dep. at 55 – 56, 57.
47
Maddox Jr. Aff. at ¶ 6.
48
Id. at ¶ 7.
49
Kozak-Biasotto Dep at 46.
50
D.I. 79, Exh. I (“CSC August 3, 2017, Letter”).
9
was caused by excessive water runoff from the driveway.”51 Oliver stated that CSC
“has moved the rip rap away from the drainage pipe in the basin, and will install a
Gabion stone wall . . . 4 to 5 feet from the pipe end to catch and filter runoff for
future one hundred year storms.”52
Kozak-Biasotto accepted Maddox, Jr.’s, Gehring’s, and Oliver’s
representations that the flooding to her property was not the result of the 2016 work
commissioned by CSC.53 When asked when she concluded that Cherrington was
responsible for the flooding, she stated “after the first flood and the second flood and
the third flood and what they did to my property.”54 She stated that, before the work
was done, “[i]t was just a small little ditch before with a pipe there, and [she] never
got any water in there . . . . The berm was so high that I never got any water in there.
It sat in the cul-de-sac at about a foot high. That’s why the concern came to
Cherrington, and they came down and thought they were going to resolve the water
in the cul-de-sac.”55
51
Id.
52
Id.
53
Kozak-Biasotto Dep. at 78.
54
Id. at 80.
55
Id. at 81.
10
2020 & 2021 Storms
In August 2020, another storm dropped a large amount of rainfall on the
Cherrington subdivision,56 and Kozak-Biasotto’s home flooded again.57 On
November 10, 2020, CSC advised Kozak-Biasotto that it had been under the
erroneous impression that CSC was responsible for maintaining the drainage basin,
but that they now concluded that it was not their responsibility because the basin was
outside of the drainage easement.58 CSC disavowed responsibility for the 2020
flooding, stating that the flooding was caused by a “500-year” storm.59 Then,
following a September 2021 storm, Kozak-Biasotto’s house flooded a third time.60
Following the third storm, Kozak-Biasotto initiated this lawsuit in which she alleges,
in addition to damage to her home and adjacent property, the floods aggravated her
asthma.61
56
Id. at 58-61.
57
Id. at 59:2-14.
58
D.I. 85, Exh. N (“CSC Nov. 10, 2020, Letter”).
59
Id. D.I. 79, Exh. K (“August 4, 2020, Delaware Online Article”).
60
Kozak-Biasotto Dep. at 74.
61
Id. at 57 - 58, 88.
11
Litigation Ensues
On October 27, 2021, Kozak-Biasotto filed a complaint against CSC,
Maddox, Jr., MEI, and Maddox III.62 She seeks a declaratory judgment to resolve
any dispute concerning the drainage easement over her property, as well as damages
for harm to her property under claims of trespass and negligence, and bad faith
attorney’s fees.63 On December 28, 2021, Kozak-Biasotto amended her complaint
to add MEI and pled additional facts about her initial reliance on the representations
made by the defendants.64 In lieu of an answer, the defendants moved to dismiss the
amended complaint contending that it was filed after the expiration of the applicable
statute of limitations.65 The Court denied defendants’ motions to dismiss, finding
that while the complaint was filed over three years after her claims accrued, Kozak-
Biasotto pled “specific facts to support that the statute of limitations was tolled
because [she] did not have inquiry notice until August of 2020, when the second
flood occurred.”66 The defendants answered the complaint and CSC and Maddox
Jr. asserted a counterclaim seeking a judgment declaring, among other things, an
62
D.I. 1.
63
Id. at 13-22.
64
D.I. 13.
65
D.I. 14, 15, 16, 17.
66
D.I. 34; Kozak-Biasotto v. Cherrington Service Corp., 2022 WL 2204850, at *2
(Del. Super. Ct. June 10, 2022).
12
easement in favor of CSC in the area of the extant drainage system at 113 Haywood
Road.67
After learning of the lawsuit, David Langseder, a professional engineer and
neighbor of Kozak-Biasotto wrote a letter to CSC.68 Langseder represented that he
lived across from Kozak-Biasotto before and after MEI’s work and disputes Kozak-
Biasotto’s representation that CSC destroyed the berm.69
Gehring, a member of CSC’s Board of Directors since 2017, offered an
affidavit in support of CSC’s Motion for Summary Judgment.70 Gehring asserted
that CSC has the legal right to perform the work conducted pursuant to its
“Certificate of Incorporation, Bylaws, Declaration of Restrictions, Recorded Plans,
New Castle County Code and the common law of Delaware.”71 He further stated
that no berm has ever existed in the space where Kozak-Biasotto alleges, and that
MEI Industries never destroyed a berm.72 He took eight photographs in 2016 prior
to Haywood Circle being cleared, prepped, and resurfaced, one photograph in July
67
D.I. 37 (“CSC Ans. and Counterclaim”) at 80-81.
68
D.I. 79, Exh. G (“Langseder Aff.”) Langseder avers that he is a professional
engineer in Civil and Environmental Engineering with 13 years of experience in dam
and flood control berms and maintenance.
69
Id.70
Gehring Aff.
71
Id. at ¶ 2.
72
Id. at ¶ 4.
13
of 2017 after the storm, and another in November of 2020.73 Gehring claims that
“[t]he 100 year storms that caused damage to [Kozak-Biasotto’s] home would have
overflowed the catch basin, spilled over her driveway and damaged her home even
if no work had been done to clear the debris and restore the catch basin.”74
Kozak-Biasotto retained engineering expert, Michael Paraskewich Jr., PhD,
PE, to perform an existing conditions/topographic survey, partial drainage analysis,
and culvert analysis of 113 Haywood Road and surrounding area.75 Dr. Paraskewich
opined that the original design of the subdivision provided for stormwater runoff to
be conveyed through the easterly easement running over Kozak-Biasotto’s property
and her neighbor to the east’s property.76 He stated:
We could have modeled a scenario in which a berm, as purported was
previously present that would have blocked the various storm events
from coming into the subject property and subsequently flooding the
house and downstream location of the pipe. A potential fix could
possibly be to catch the drainage in the general vicinity up stream of the
purported berm, convey it in the right of way or in the 10-foot easement
and release it through the eastern easement. To verify this approach
significant design and construction efforts will have to be considered
before we can definitively state this feasibility.77
73
Id. at ¶ 5.
74
Id. at ¶ 13.
75
D.I. 79, Exh. L (“Paraskewich Rpt.”).
76
Id. at 1.
77
Id.
14
Paraskewich concluded that the catch basin and pipe are not within any drainage
easement.78
CSC retained engineering expert, Dwight Walters, PE, to assess the
property.79 Walters’ conclusions are largely consistent with those of Paraskewich.
He opined that the pipe would be over capacitated during an 8.22 year storm event
or greater;80 Paraskewich reached the same conclusion for 10-year storm events or
greater. Walters found that the placement of the rip rap stone would not reduce the
volume of water conveyed to the pipe, but would lessen soil erosion and filter debris
from entering the pipe.81 He also concluded that the pipe is not within any
easement.82 On December 19, 2023, Walters provided a supplemental report with a
professional opinion that “even if no maintenance was performed to remove any of
the “elevated debris” from Haywood Road . . . the maximum capacity of the existing
15-inch stormdrain pipe would still be reached and surpassed during storm events of
approximately 8.22 years or greater.”83
78
Id.
79
D.I. 79, Exh. M (“Walters Rpt. Sept. 26, 2023”).
80
Id.
81
Id.
82
Id.
83
D.I. 79, Exh. N (“Walters Rpt. Dec. 26, 2023”) at 2.
15
III. STANDARD OF REVIEW
Under Superior Court Civil Rule 56, summary judgment will be granted
where “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”84
On a motion for summary judgment, this Court “(1) construes the record in the light
most favorable to the non-moving party; (ii) detects, but does not decide, genuine
issues of material fact; and (iii) denies the motion if a material fact is in dispute.” 85
Summary judgment will not be granted if there is a material fact in dispute or if it
“seems desirable to inquire thoroughly into [the facts] in order to clarify the
application of the law to the circumstances.”86 The Court will not “indulge in
speculation and conjecture; a motion for summary judgment is decided on the record
presented and not on evidence potentially possible.”87 This Court has stated:
Although summary judgment is encouraged, when possible, there is no
right to summary judgment. The Court may deny summary judgment
if the Court is not reasonably certain whether there is a triable fact issue.
The Court may also deny summary judgment if the Court concludes a
84
Super. Ct. Civ. R. 56(c).
85
U.S. Dominion, Inc. v. Fox News Network, LLC, 2023 WL 2730569, at *17 (Del.
Super. Ct. Mar. 31, 2023) (quoting CVR Refin., LP v. XL Specialty Ins. Co., 2021
WL 5492671, at *8 (Del. Super. Ct. Nov. 23, 2021) (cleaned up)).
86
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
87
In re. Asbestos Litig., 509 A.2d 1116, 1118 (Del. Super. 1986), aff’d sub. nom.
Nicolet, Inc. v. Nutt, 525 A.2d 146 (Del. 1987).
16
more thorough inquiry into, or development of, the facts would clarify
the law or its application.88
It is against this backdrop that the Court decides the pending motions.
IV. ARGUMENT
MEI and Maddox III moved for summary judgment, alleging that Kozak-
Biasotto’s claims are barred by the applicable statute of limitations,89 and that she
fails to offer the requisite expert opinion to establish her prima facie case.90 CSC
and Maddox Jr. joined MEI and Maddox III,91 and, in addition to the arguments
raised by MEI and Maddox III, seek summary judgment on Kozak-Biasotto’s claim
for declaratory judgment, argue that Kozak-Biasotto’s claims for trespass and
negligence are unsupported by the record, and request an award of attorney’s fees.92
CSC and Maddox Jr. also filed a separate motion for summary judgment on its
counterclaim seeking a declaratory judgment.93 Kozak-Biasotto responded,94 and
the Court heard argument on the motions.95
88
U.S. Dominion, Inc., 2023 WL 2730569, at *18 (cleaned up).
89
10 Del. C. § 8106.
90
D.I. 78.
91
D.I. 79.
92
Id.
93
D.I. 80.
94
D.I. 85, 86, 87.
95
D.I. 91.
17
A. Statute of Limitations
Defendants argue that Kozak-Biasotto’s claims accrued on July 26, 2016 and
that, because she failed to file her complaint within the three year period provided
by 10 Del. C. § 8106, summary judgment is warranted.96 While this argument
mirrors that presented by the defendants in their motions to dismiss, they argue that
discovery has disproven the allegations upon which the Court then relied.97 Kozak-
Biasotto contends that the Court has already decided this issue in Plaintiff’s favor
and “the Defendants add nothing to change that.”98 While this case has more fully
developed, material factual disputes remain.
As an initial matter, the Court is not bound by its earlier ruling on defendants’
motions to dismiss and may consider facts developed during discovery when
assessing the application of a statute of limitation in a motion for summary
judgment.99 “To determine if an exception tolls the statute of limitations, the Court
conducts a three part test: first, the Court decides when a cause of action accrued;
second, the Court must assess whether the statute of limitations has been tolled, and
96
MEI Op. Brf. at 10, ¶ 25; CSC Op. Brf. at 18-19.
97
MEI Op. Brf. at ¶¶ 21-22; CSC Op. Brf. at 20.
98
Kozak-Biasotto Ans. Brf. at 26.
99
See, e.g., Vaughn v. Jackson, 2016 WL 1427718 (Del. Super. Ct. Apr. 7, 2016).
18
third, the Court must determine when the plaintiff was on inquiry notice of the cause
of action.”100
In the Order denying defendants’ motions to dismiss, this Court held that:
[T[he causes of action in Plaintiff’s complaint are governed by 10 Del.
C. § 8106, which requires that a plaintiff bring an action to recover
damages within three years of the accruing of the cause of action. The
statute of limitations will begin to accrue at the moment of the wrongful
act and not when the effects of the act are felt, even if the plaintiff is
ignorant of the cause of action. A “wrongful act” is a general concept
which varies depending upon the nature of the claims at issue.
Generally a cause of action for negligence accrues at the time of the
alleged injury.101
While a more fulsome record has been developed, section 8106 of Title 10
applies with equal force here. Kozak-Biasotto’s cause of action accrued on July 26,
2016, when defendants entered upon and altered Kozak-Biasotto’s property.102
Absent an exception allowing for the tolling of the applicable statute of limitations,
Kozak-Biasotto’s complaint must have been filed by July 26, 2019.103 Of course,
she did not file her complaint until October 27, 2021.104 A factual dispute remains
as to whether the statute of limitations tolled.
100
Crest Condominium Association v. Royal Plus, Inc., 2017 WL 6205779 (Del.
Super. Ct. Dec. 7, 2017).
101
Kozak-Biasotto, 2022 WL 2204850, at *2 (cleaned up).
102
Id.103
10 Del. C. § 8106.
104
D.I. 1.
19
The Court summarized those tolling circumstances as they apply to this case
in its Order on the motions to dismiss:
[U]nder Delaware law, the statute of limitations may be tolled when no
observable or objective factors put a party on notice of an injury, and
plaintiff must show that they were blamelessly ignorant of the act or
omission and the injury. “Inquiry notice” means the discovery of facts
constituting the basis of the cause of action or the existence of facts
sufficient to put a person of ordinary intelligence and prudence on
inquiry which, if pursued, would lead to discovery of such facts.
Blameless ignorance can be established by showing justifiable reliance
on a professional or expert whom [the plaintiff] had no ostensible
reason to suspect of deception. The party asserting the application of a
tolling doctrine bears the burden of pleading specific facts to
demonstrate that the statute of limitations is, in fact, tolled.
To evaluate a plaintiff's objective awareness of the facts giving rise to
the injury, the Court examines whether there are “red flags” that clearly
and unmistakably would have led a prudent person of ordinary
intelligence to inquire further and by determining if plaintiff gained
possession of facts sufficient to make him suspicious, or that ought to
make him suspicious.105
Applying these principles to the facts alleged in Kozak-Biasotto’s amended
complaint, the Court found:
Viewing the evidence in the light most favorable to the Plaintiff, the
Court finds that the Plaintiff pleads specific facts to support that the
statute of limitations was tolled because Plaintiff did not have inquiry
notice until August of 2020, when the second flood occurred. Plaintiff
adequately pleads that she relied on statements and representations
made by Defendants that would reasonably delay notice of her injury.
Likewise, a layperson would not have reasonable knowledge of the
nature of the work performed by the Defendants on the drainage basin,
pipe, and berm, especially when the Defendants unilaterally performed
the work, without Plaintiff's permission. Also, it is not unreasonable
105
Kozak-Biasotto, 2022 WL 2204850 at *2 (internal citations omitted) (cleaned up).
20
for the Plaintiff to have believed that the flooding in 2017 was an
isolated incident caused by an unusual storm and the Defendants’
representations that followed, including a forensic investigation by the
Defendants which concluded that the drainage basin operated as
anticipated.
Moreover, after the August 2020 incident, the Defendants appear to
disavow any responsibility for the drainage pipe and basin on the
Property because it was discovered that the easement was in a different
location. Similarly, Plaintiff has adequately plead facts that she was
blamelessly ignorant as her reliance on the Defendants’ representations
is reasonable because Defendants are construction professionals. Thus,
the Plaintiff's complaint is timely.106
With discovery complete, the Court now assesses whether facts continue to
support these tolling provisions or, more accurately, whether there is any factual
dispute as to the application of a tolling provision. To survive summary judgment,
the record must present a factual question as to whether one or more of the tolling
doctrines applies to Kozak-Biasotto’s claim.107 “Under the time of discovery
exception, the legal limitations period would not run against [Kozak-Biasotto] until
[she] had reason to know of the trespass [] if the injury was “inherently unknowable”
and [she was] “blamelessly ignorant.”108 “For an injury to be inherently
106
Id.107
Acierno v. Goldstein, 2005 WL 3111993, at *5 (Del. Ch. Nov. 16, 2005).
108
Id. at *6.
21
unknowable, there must have been no observable or objective factors to put a party
on notice of injury.”109
Kozak-Biasotto’s claims accrued on July 26, 2016. “Trespass is a strict
liability offense, the elements of which are entry onto real property without the
permission of the owner.”110 Thus, Kozak-Biasotto’s trespass claims accrued when
defendants left her property after completing the drainage work. “To prevail in a
claim for negligence, a plaintiff must establish that: 1) the defendant owed the
plaintiff a duty of care; 2) the defendant breached that duty; 3) the plaintiff was
injured; and 4) the defendant's breach was the proximate cause of the plaintiff's
injury.”111 Kozak-Biasotto alleges that defendants breached their duty of care to her
when they entered and damaged her property.
Facts continue to support the tolling of the statute of limitations for each of
Kozak-Biasotto’s claims for the same reasons the Court found in its Order on the
defendants’ motions to dismiss. Kozak-Biasotto testified that she was not informed
of the work to be done on her property and was never asked to provide her consent.
Defendants admitted as much. She also stated that she trusted and relied on CSC
and Maddox Jr.’s representations. Defendants represented that the reason for the
109
Id. (cleaned up).
110
Beckrich Hold., LLC v. Bishop, 2005 WL 1413305, at *9 (Del. Ch. June 9, 2005).
111
Campbell v. DiSabatino, 947 A.2d 1116, 1117 (Del. 2008).
22
2017 flooding was a 100-year storm, and that their drainage system had worked as
intended. That provided a reasonable alternative cause of the flooding that allowed
Kozak-Biasotto to believe that the drainage system worked despite the flood
damage.112
Kozak-Biasotto contends that she did not have inquiry notice until November
of 2020 when CSC disavowed responsibility and asserted its legal right to enter and
work upon her property.113 CSC initially claimed responsibility for the maintenance
and repair of the drainage system until November 2020, when they determined the
drainage system was outside of their easement.114 Kozak-Biasotto’s reliance on CSC
and Maddox, Jr.’s representations was not unreasonable.
A material question of fact concerning when the cause of action was
discovered, for purposes of applying the tolling provision, exists. Applying a
reasonable person standard and viewing the facts in a light most favorable to Kozak-
Biasotto, a dispute remains as to whether Kozak-Biasotto, in the exercise of due
diligence, should have ignored Maddox, Jr.’s 2017 representations and immediately
attributed the flooding of her home to MEI’s 2016 work. The determination of
112
See Armstrong v. Council of Devon, 2018 WL 1448093 (Del. Super. Ct. Mar. 23,
2018).
113
Kozak-Biasotto Ans. Brf. at 30-31.
114
CSC Nov. 10, 2020, Letter.
23
whether Kozak-Biasotto should have been on notice to investigate the cause of the
flooding prior to 2020 must be left to the trier of fact.
B. Expert Opinion
Defendants assert that Kozak-Biasotto fails to offer necessary expert
testimony to establish the defendant’s work caused her damages.115 MEI and
Maddox, III, assert, “[t]o prevail in a case like this, Plaintiff must show that
defendants created an artificial condition that altered or increased the flow of surface
waters onto her property, AND that the altered flow caused material injury.”116 They
contend, “[h]ere, Plaintiff failed to secure expert opinions identifying any alteration
in the flow of surface waters on and across Plaintiff’s property that would give rise
to any damages thereon.117
Plaintiff’s engineering expert, Michael Paraskewich Jr., PHD, PE, authored a
report after performing an existing conditions/topographic survey, partial drainage
analysis, and culvert analysis of 113 Haywood Road and surrounding area.118 Dr.
Paraskewich concluded that the original design intent of the subdivision was to allow
stormwater runoff to be conveyed through the easterly easement shared between
115
MEI Op. Brf. at ¶ 27.
116
Id.117
Id. at ¶ 28.
118
Paraskewich Rpt.
24
Kozak-Biasotto’s property and her neighbor to the east’s property prior to the roads
or houses being constructed.119 He stated:
We could have modeled a scenario in which a berm, as purported, was
previously present that would have blocked the various storm events
from coming into the subject property and subsequently flooding the
house and downstream location of the pipe. A potential fix could
possibly be to catch the drainage in the general vicinity up stream of the
purported berm, convey it in the right of way or in the 10-foot easement
and release it through the eastern easement. To verify this approach
significant design and construction efforts will have to be considered
before we can definitively state this feasibility.120
Dr. Paraskewich found that the Pipe is not within any drainage easement.121
CSC’s engineering expert, Dwight Walters, PE generally agreed with Dr.
Paraskewich’s findings.122 Walters concluded that the pipe would be over
capacitated during an 8.22 year storm event or greater, while Dr. Paraskewich
concluded the pipe was incapable of handling 10-year storm events or greater.123
Walters stated that the placement of the rip rap stone would not reduce the volume
of water conveyed to the pipe, but would lessen soil erosion and filter debris from
119
Id. at 1.
120
Id.
121
Id.
122
Walters Rpt. Sept. 26, 2023
123
Id.
25
entering the pipe.124 He also concluded that the pipe is not within any easement.125
Walters later supplemented his opinion, noting that “even if no maintenance was
performed to remove any of the ‘elevated debris’ from Haywood Road . . . the
maximum capacity of the existing 15-inch stormdrain pipe would still be reached
and surpassed during storm events of approximately 8.22 years or greater.”126 Thus,
there is no dispute that the water management system on Kozak-Biasotto’s property
could not handle heavy storms on its own. But questions remain as to whether the
defendants altered or removed other landscape features that mitigated the effects of
heavy rain on that pipe and Kozak-Biasotto’s property.
There is no requirement for expert testimony to establish Kozak-Biasotto’s
claims. Rather, expert opinions are required to prove any element of a claim which
is beyond common knowledge. “While it is the jury’s role to determine issues of
negligence, Delaware Courts have granted summary judgment where the plaintiff
has failed to produce an expert opinion when issues involving the standard of care,
defects or proximate cause relate to matters outside the knowledge of the jury.”127
124
Id.
125
Id.
126
Walters Rpt. Dec. 26, 2023.
127
Bond v. Wilson, 2015 WL 1242828, at *2 (Del. Super. Mar. 16, 2015), aff'd, 125
A.3d 676 (Del. 2015).
26
Where matters are “within the common knowledge of laymen,”128 expert testimony
is not required.
Here, Kozak-Biasotto does not simply point to her injury and allege that the
Defendants are responsible because they altered the natural water flow in her
neighborhood. Rather, she contends, “[i]t was negligent for Defendants to destroy
a berm that was blocking the stormwater, particularly while not providing for the
adequate drainage of that stormwater. It was not only reasonably foreseeable that
the stormwater would drain on Ms. Kozak-Biasotto’s property – that was
Defendants’ intent.”129 The defendants admit that they commissioned and
performed work to correct standing water in the cul-de-sac by directing it to, and
ultimately, through the pipe on Kozak-Biasotto’s Property. There does not appear
to be a dispute that the work succeeded in that goal. To the extent this fact is
disputed, its resolution must be left to the factfinder.
On many points, Dr. Paraskewich and Walters are largely in agreement. Of
course, an expert may not testify at trial beyond the scope of the expert report.130
But here, the experts establish that some work was done to Kozak-Biasotto’s
property in a location not subject to an easement which impacted the flow of water
128
Campbell v. DiSabatino, 947 A.2d 1116, 1118 (Del. 2008).
129
Amend. Compl. ¶ 99.
130
Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519, 523 (Del. Dec.
4, 2006).
27
directed to an extant pipe on Kozak-Biasotto’s property. And the experts conclude
that the pipe was inadequate for heavy rainwater events and not the best solution for
managing downstream rainwater in a residential neighborhood. It appears that an
open swale within the existing easement is the best downstream water management
system.131 The proffered experts adequately inform on technical issues such that a
lay-jury may assess the defendants’ conduct within the contours of Kozak-Biasotto’s
claims. A material fact remains as to whether defendants work is the proximate
cause of the damages alleged by Kozak-Biasotto and this assessment, under the facts
presented here, may be performed by a layperson with the assistance of the parties’
proffered experts.
C. Trespass
To prove a trespass to land claim, Kozak-Biasotto must show “1) that the
claimant has lawful possession of the land; 2) that the opposing party entered the
claimant's land without consent or privilege; and 3) damages.”132 “Any unlawful
entry upon another’s land constitutes a trespass, and the law implies damages for
131
CSC July 28, 2021, Letter (“CSC has been informed that Storm water run-off is
best managed by an open swale”); Walters Rpt. Sept. 26, 2023, at 3 (“Regrade the
yard area ... to provide a conveyance swale. This would allow the stormwater from
larger storm events to safely be conveyed”).
132
Dayton v. Collison, 2020 WL 3412701, at *7 (Del. Super. Ct. Jun. 22, 2020)
(citing Williams v. Manning, 2009 WL 960670, at *8 (Del. Super. Mar. 13, 2009)).
28
such a trespass, but the amount depends upon the damage actually done.” 133 A
material factual dispute exists as to the defendant’s trespass on Kozak-Biasotto’s
property, thus this claim survives summary judgment.
Kozak-Biasotto owned and resided at 113 Haywood Road when the work was
performed.134 When Kozak-Biasotto returned home in late July, 2016, she saw the
defendants performing work on her property.135 Maddox Jr. advised that the work
was being done on behalf of CSC to correct standing water in the neighborhood,136
and the parties introduced the contract in which CSC ordered the work to be done
by MEI.137 Indeed, CSC and Maddox Jr.’s answers to interrogatories state that they
neither requested nor obtained Kozak-Biasotto’s consent to perform the work on her
property.138 And, all now agree that the work performed was done on an area of
Kozak-Biasotto’s property outside of the established easement.139
There is a genuine dispute as to whether the work performed by the defendants
altered the flow of stormwater across the property and whether it caused the flooding
133
O’Bier v. JBS Const., LLC, 2012 WL 1495330 (Del. Super. Ct. Apr. 20, 2012)
(citing Cochran v. City of Wilmington, 77 A.963 (Del. Super. Ct. 1909)).
134
NCC Parcel Search.
135
CSC Ans. to Interrogatories at ¶ 11; Kozak-Biasotto Dep. at 41.
136
Kozak-Biasotto Dep. at 44.
137
MEI Work Proposal.
138
CSC Ans. to Interrogatories at 9, ¶¶ 10-11.
139
CSC Nov. 10, 2020, Letter; Paraskewich Rpt.
29
damage. Alteration of the flow of surface water may support liability on a trespass
claim.140 The right of CSC or Maddox to perform the work is also disputed. CSC
in their November 10, 2020, letter disavowed further responsibility for maintenance
of the drainage system because “the drainage basin and pipe are not situated on lands
owned by the CSC,” nor situated “within the boundaries of the NCC approved
drainage Easement.”141 For these reasons, a material factual dispute exists,
D. Negligence
“To prevail in a claim for negligence, a plaintiff must establish that: 1) the
defendant owed the plaintiff a duty of care; 2) the defendant breached that duty; 3)
the plaintiff was injured; and 4) the defendant's breach was the proximate cause of
the plaintiff's injury.”142 CSC and Maddox Jr. assert that Kozak-Biasotto cannot cite
to any authority which imposes a duty on CSC and Maddox Jr. with regard to their
removal of debris “impeding rightful drainage.”143 And they contend that there is
no evidence of the work being the proximate cause of the flooding because
defendants’ expert establishes that the flooding would have occurred had the work
not been performed.144
140
Alfieri v. State, 1984 WL 478437, at *3 (Del. Ch. Aug. 8, 1984).
141
CSC Nov. 10, 2020, Letter.
142
Campbell v. DiSabatino, 947 A.2d 1116, 1117 (Del. 2008).
143
Id.144
Id.30
Kozak-Biasotto alleges that defendants owed, and breached, a duty to act as a
reasonably prudent person to prevent reasonably foreseeable harm.145 While CSC
may have a right to alter the flow of water within a community, there is an associated
duty to ensure the alterations do not negatively affect homeowners.146 There is no
evidence that the existing easement was unavailable to the defendants as they
worked to remediate rainwater runoff and clear roads for repaving.
One has a duty to act as a reasonably prudent person would.147 One also has
a duty to protect against reasonably foreseeable events.148 Defendants owe Kozak-
Biasotto a duty of care – CSC as Plaintiff’s homeowners association; Maddox Jr. as
a member of CSC’s board; MEI and Maddox III in performing land-altering work
on Kozak-Biasotto’s property.149 A dispute clearly exists as to the extent of this duty
and whether this duty was breached.
145
Amend. Compl. ¶ 98; Kozak-Biasotto Ans. Brf. at 39 (citing Delmarva Power &
Light Co., 435 A.2d 716, 718 (Del. 1981)).
146
Murray v. Mason, 244 A.3d 187, 194-195 (Del. Super. Ct. Dec. 16, 2020)
(“Anyone who performs an affirmative act is under a duty to others to ‘exercise the
care of a reasonable man to protect them against an unreasonable risk of harm to
them arising out of the act’”) (citations omitted).
147
Delmarva Power & Light Co., 435 A.2d at 718.
148
Id.
149
Adams v. Calverese Farms Maint. Corp., Inc., 2010 WL 3944961 (Del. Ch. Sept.
17, 2010); Bromwich v. Hanby, 2010 WL 8250796 (Del. Super. Ct. July 1, 2010).
31
Walters concluded, “[s]torm water run-off is best managed by an open swale.
Pipes are not preferred because they can easily become blocked at the inlet, can
become jammed internally, and may be inadequately sized to handle 100-year storms
(or greater).”150 Nonetheless, the record reveals that all of the July 2016 work
focused on directing, and possibly redirecting, neighborhood water to a pipe
woefully inadequate to safely manage large storm events.
To be sure, material factual disputes abound with respect to whether and how
defendants breached their duty to Kozak-Biasotto. The record reveals that the 2016
work on Kozak-Biasotto’s property commenced and concluded with little foresight.
Neither CSC, MEI, or their principals, sought to inform themselves of their rights
and responsibilities with respect to Kozak-Biasotto’s property. And no defendant
endeavored to notify Kozak-Biasotto of the work to be done, or to secure her
permission to enter upon and alter her property. This ignorance was compounded
by Maddox, Jr.’s representations of a right to act where no right appears to have
existed.
And breaches of the duty of care owed to Kozak-Biasotto may be found in the
work performed. A factual dispute exists as to whether the defendants destroyed a
berm causing an increase in waterflow to and upon Kozak-Biasotto’s property. And
even assuming that the work merely “cleaned up” an extant system, no consideration
150
CSC July 28, 2021, Letter.
32
was given to preparing the property to absorb neighborhood rainwater. Ultimately,
it is for the factfinder to assess whether the alleged duty and breach thereof
proximately caused damage to Kozak-Biasotto’s property and home.
E. Declaratory Judgment Action
Kozak-Biasotto and CSC seek a declaratory judgment under Chapter 65 of
Title 10.151 CSC has moved for summary judgment on both Kozak-Biasotto’s claim
(seeking a declaration of rights and responsibilities with respect to the existing
easement) and its counterclaim (seeking to declare an easement exists in favor of
CSC at the location of the extant drainage system).
“The decision to entertain an action for declaratory judgment is discretionary
with a trial court, the only limitation being that the Court cannot abuse its
discretion.”152 The Declaratory Judgment Act provides “prospective, i.e., forward-
looking relief,”153 but it neither broadens nor narrows the jurisdiction of this court;
“[j]urisdiction under the Act hinges upon whether law or equity would
independently have jurisdiction without reference to the Act.”154 And where the
declaratory judgement is sought “within a common law or statutorily authorized
151
Id. at ¶¶ 69-84; CSC Ans. and Counterclaim at 80.
152
Burris v. Cross, 583 A.2d 1364, 1372 (Del. Super. 1990) (cleaned up).
153
Employers Insurance Co. of Wassau v. First State Orthopaedics, P.A., 2024 WL
74148, at *11 (Del. Jan 8, 2024) (internal citations omitted).
154
Burris, 583 A.2d at 1376-77.
33
cause of action,” this Court maintains jurisdiction.155 Within these established
parameters, an action to establish the scope of an easement may be within the
Superior Court’s jurisdiction.156
Here, the existence and scope of the easements burdening 113 Haywood Road
are not in dispute. But CSC contends that Kozak-Biasotto unlawfully moved the
easement,157 and offers to “consent to this relocation of the drainage easement as
long as the relocation is equivalent.”158 Of course, material facts exist as to whether
the easement burdening 113 Haywood Road has been moved as CSC contends. The
alleged unlawful easement existed on the property for nearly 40 years without
complaint from CSC. And, a material factual dispute exists as to whether any owner
of the burdened property, Kozak-Biasotto or her predecessors, sought to relieve
neighborhood water through the disputed drainage system.
155
Id. at 1377 (emphasis in original).
156
Id.157
D.I. 80 at ¶ 8. (“By rendering the Record Easement on the easterly side of Lot 7
unusable and re-directing stormwater runoff to the westerly side of Lot 7, Kozak-
Biasotto’s predecessors in title changed the location of the stormwater drainage
easement that encumbers Plaintiff’s Property without CSC’s consent. This they had
no right to do.”)
158
Id. at ¶ 11
34
F. Bad Faith – Attorney’s Fees
The Delaware Supreme Court recently explained the circumstances under
which attorney’s fees may be awarded:
Delaware law follows the American Rule, under which litigants are
generally responsible for paying their own litigation costs. Courts
recognize “limited equitable exceptions” to the American Rule,
including one for a party's “bad faith” conduct throughout litigation.
Although there is no all-encompassing definition of “bad faith”
conduct, Delaware courts have granted attorneys’ fees where a party
“unnecessarily prolonged or delayed litigation, falsified records, or
knowingly asserted frivolous claims.” In Delaware, the “bad faith”
exception only applies in “extraordinary circumstances.” Its purpose is
“to deter abusive litigation and protect the integrity of the judicial
process.”159
While the Court will not comment on the strength of any party’s case, Kozak-
Biasotto has asserted justiciable claims, and the respective defendants have mounted
a vigorous defense. To the extent that certain things could, or should, have been
investigated more thoroughly prior to 2016, all parties bear some responsibility for
acting with curable ignorance. The record fails to reveal extraordinary facts or
circumstances supporting bad faith by any part. Summary judgement is granted on
Kozak-Biasotto’s claim of “Bad Faith – Attorney’s Fees.”
159
Dematteis v. RiseDelaware, 2024 WL 1590382, *5 (Del. Apr. 12, 2024).
35
V. CONCLUSION
While summary judgment is encouraged when feasible, this case presents
triable issues of material fact: Defendants’ Motions for Summary Judgment on the
issue of statute of limitations are DENIED; Defendants’ Motions for Summary
Judgment on the issue of expert opinion testimony are DENIED; CSC and Maddox,
Jr.’s Motion for Summary Judgment on trespass and negligence is DENIED; CSC’s
Motion for Summary Judgment on its Declaratory Judgment counterclaim is
DENIED; and Summary Judgment is GRANTED on Kozak-Biasotto’s claim of
“Bad Faith – Attorney’s Fees.”
IT IS SO ORDERED.
______________________
36